The Alternative Investment Fund Managers (Amendment) Regulations 2013

Regulation 3

SCHEDULE 1U.K.Amendments to legislation that implement Articles 35 and 37 to 41 of the directive

Amendments to the ActU.K.

1.—(1) The Act is amended as follows.

(2) In section 55V(8) (determination of applications) M1 for “regulation 5” insert “ regulations 5 and 5A ”.

F1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) M2In section 418 (carrying on regulated activities in the United Kingdom) —

F2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)[F3after subsection (5AA)] insert—

“(5B) The [F4seventh] case is where—

(a)the regulated activity being carried on by the person is the regulated activity of managing an AIF,

(b)the AIF being managed—

(i)has its registered office in [F5the United Kingdom], or

(ii)is marketed in [F5the United Kingdom],

(c)if the AIF being managed is marketed in [F6the United Kingdom], it is marketed otherwise than in accordance with [F7regulation 59 of the Alternative Investment Fund Managers Regulations 2013, and]

(d)the person does not have a registered office in [F8the United Kingdom], F9...

F10(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(5C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”, and

[F12(c)in subsection (6) for “(5AA)” substitute “ (5B) ”.]

(5) In Schedule 3 (EEA passport rights)—

(a)in paragraph 5(h) (EEA firm) M3 omit “Article 6.1 of”,

(b)in paragraph 7A(aa) (EEA right: meaning of “relevant office”) M4 for paragraph (aa) substitute—

“(aa)in relation to a person whose entitlement [F13derives from] the alternative investment fund managers directive—

(i)if the person's registered office is in an EEA State, its registered office;

(ii)if the person's registered office is not in an EEA State, the registered office or branch of its legal representative (as defined in Article 4(1)(u) of the alternative investment fund managers directive);”,

(c)in paragraph 10A(aa) (UK firm: meaning of “relevant office”) M5 for paragraph (aa) substitute—

“(aa)in relation to a firm whose EEA right derives from the alternative investment fund managers directive—

(i)if the firm's registered office is in an EEA State, its registered office;

(ii)if the firm's registered office is not in an EEA State, the registered office or branch of its legal representative (as defined in Article 4(1)(u) of the alternative investment fund managers directive);”,

(d)in paragraph 14(3A) (services) M6 after “Article 32” insert “ , 35, 39 or 40 ”,

(e)in paragraph 19(7BB)(b) (establishment) M7 omit “Article 6.1 of”,

(f)in paragraph 20(3D)(a)(ii) (services) M8 omit “Article 6.1 of”, and

(g)in paragraph 20C (notice of intention to market an AIF) M9—

(i)in sub-paragraph (1) for “a UK AIF or EEA AIF” substitute “ an AIF ”,

(ii)for sub-paragraph (5)(b) substitute—

“(b)if the AIF is a third country AIF or a third country feeder AIF—

(i)appropriate co-operation arrangements are in place between the FCA and the supervisory authorities of the relevant third country in order to ensure an efficient exchange of information that allows the FCA to carry out its duties in accordance with the alternative investment fund managers directive,

(ii)the relevant third country is not listed as a Non-Cooperative Country and Territory by the Financial Action Task Force,

(iii)the relevant third country has signed an agreement with the United Kingdom and with each other EEA State in which the units or shares of the AIF are intended to be marketed, and

(iv)the agreement fully complies with the standards laid down in Article 26 of the Organisation for Economic Co-operation and Development's Model Tax Convention on Income and on Capital 2010 M10 and ensures an effective exchange of information on tax matters, including any multilateral tax agreements.”, and

(iii)in sub-paragraph (12), in the appropriate places insert the following definitions—

““relevant third country” means—

“third country AIF” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013;

“third country feeder AIF” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013;

“third country AIFM” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013.”.

(6) In paragraph 2B of Schedule 6 (threshold conditions - location of offices) M11, in sub-paragraph (7), for “a full-scope UK AIFM, A's head office and registered office must be in the United Kingdom” substitute—

“a full-scope UK AIFM—

(a)A's head office and registered office must be in the United Kingdom, or

(b)A's registered office must be in a [F14third country].”.

Amendments to the principal regulationsU.K.

2.—(1) The principal regulations are amended as follows.

(2) In regulation 2(1) (interpretation)—

(a)in the definition of “external valuer” after “full-scope UK AIFM” insert “ other than an AIF that is marketed only pursuant to [F15regulation 59 of these Regulations] ”,

F16(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F17(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)in the definition of “small third country AIFM” at the end insert “ and which has not exercised the option F18... to meet the full requirements [F19applying to a full-scope AIFM]”,

(e)at the appropriate place insert—

(f)for the definition of “UK AIFM” substitute—

(3) At the end of regulation 2 insert—

“(4) Any reference in these Regulations to cancellation of a Part 4A permission to carry on the regulated activity of managing an AIF includes reference to the variation of a Part 4A permission to remove the regulated activity of managing an AIF from those activities to which the permission relates.”.

(4) In regulation 5 (applications for Part 4A permission)—

(a)in paragraph (1) for “applies” in the first place it appears substitute “ and regulation 5A apply ”,

(b)in paragraph (3)(b) for “the regulator” substitute “ subject to regulation 5A(4), the regulator ”,

(c)in paragraph (4) for “The regulator” substitute “ Subject to regulation 5A(5), the regulator ”,

(d)in paragraph (7) for “If the regulator” substitute “ Subject to regulation 5A(5), if the regulator ”, and

(e)in paragraph (8) for “An application” substitute “ Subject to regulation 5A(6), an application ”.

(5) After regulation 5 insert—

“Applications by AIFMs from third countries

5A.—F24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In the case of an applicant for Part 4A permission whose registered office is in a third country, the regulator must not give the Part 4A permission unless, in addition to the conditions specified in regulation 5(3) being met—

F25(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the applicant has appointed a legal representative who—

(i)is the point of contact for the FCAF26... and investors in relation to the AIFs managed or to be managed by the applicant;

(ii)is sufficiently equipped to perform the compliance function [F27pursuant to the Financial Services and Markets Act 2000, these Regulations, and any EU tertiary legislation made under the directive which forms part of EU retained law] in relation to those AIFs; and

(iii)if an individual, is domiciled in the United Kingdom, or if not an individual, has a registered office or a branch in the United Kingdom;

[F28(c) appropriate co-operation arrangements are in place between the FCA, the competent authority in relation to any EEA AIF managed by the applicant and the supervisory authorities of the third country in which the applicant has its registered office, in order to ensure an efficient exchange of information that enables the FCA to carry out its duties in accordance with the Financial Services and Markets Act 2000, these Regulations, and any EU tertiary legislation made under the directive which forms part of EU retained law;]

(d)the third country in which the applicant has its registered office is not listed as a Non-Cooperative Country and Territory by the Financial Action Task Force;

(e)the third country in which the applicant has its registered office has signed an agreement with the United Kingdom, which fully complies with the standards laid down in Article 26 of the Organisation for Economic Co-operation and Development's Model Tax Convention on Income and on Capital and ensures an effective exchange of information on tax matters, including any multilateral tax agreements; and

(f)the effective exercise by the FCA [F29of its supervisory functions under the Financial Services and Markets Act 2000, these Regulations and any EU tertiary legislation made under the directive which forms part of EU retained law] is not prevented by the laws, regulations or administrative provisions of a third country which apply to the applicant, nor by limitations in the supervisory and investigatory powers of that country's supervisory authorities.

(4) Notwithstanding regulation 5(3)(b), the regulator may give the Part 4A permission to an applicant whose registered office is in a third country if the regulator is satisfied that—

(a)it is impossible for the applicant to comply with an implementing provision applicable to a full-scope UK AIFM which has its registered office in a third country because of a mandatory provision in the law that applies to the applicant or a third country AIF that the applicant intends to market in [F30the United Kingdom or in Gibraltar],

(b)the law that applies to the applicant or the third country AIF provides for a rule that is equivalent to that implementing provision, has the same regulatory purpose as that provision and offers the same level of protection to the investors of the AIFs managed by the applicant or, as the case may be, the investors of that AIF, and

(c)the applicant or, as the case may be, the AIF complies with that equivalent rule.

F31(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) In the case of an applicant whose registered office is in a third country, the application is complete if, in addition to containing the information mentioned in regulation 5(8), it contains—

F32(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)a list of any implementing provisions with which it is impossible for the applicant to comply because of a mandatory provision in the law that applies to the applicant or a third country AIF that the applicant intends to market in [F33the United Kingdom or in Gibraltar], or confirmation that there are no such provisions;

(c)if any provision is included in a list provided under sub-paragraph (b), written evidence that—

(i)the law that applies to the applicant or the third country AIF provides for a rule that is equivalent to the provision;

(ii)the equivalent provision has the same regulatory purpose as the provision included in the list provided under sub-paragraph (b);

(iii)the equivalent provision offers the same level of protection to the investors of the AIFs managed by the applicant or, as the case may be, the investors of the third country AIF; and

(iv)the applicant or, as the case may be, the third country AIF complies with that equivalent rule,

such evidence being based on regulatory standards developed by [F34the FCA];

(d)if evidence is provided under sub-paragraph (c), a legal opinion in support of the evidence on the existence of the relevant mandatory provision, and a description of the regulatory purpose of and the nature of the investor protection pursued by the equivalent rule;

(e)the name of the legal representative of the applicant and the place where the legal representative has its registered office or a branch (in the case of a legal person) or where he or she is domiciled (in the case of an individual).”.

F35(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) For regulation 10(2)(c) (small registered UK AIFMs) substitute—

“(c)either—

(i)in the case of an AIFM with its registered office in the United Kingdom, grounds do not exist which would permit or require a court to make a disqualification order within the meaning of section 1(1) of the Company Directors Disqualification Act 1986 M12 against an individual responsible for the management or operation of the AIFM; or

(ii)in the case of an AIFM with its registered office in a third country, such grounds would not exist if the AIFM were a company incorporated in the United Kingdom.”.

(8) For regulation 29(1) (depositary liability: general provisions) for the words from “in relation to” to the end substitute—

“in relation to—

(a)the depositary of a UK AIF managed by a full-scope UK AIFM or [F36a Gibraltar AIFM]; or

(b)the depositary of a third country AIF managed by a full-scope UK AIFM if—

(i)the depositary has its registered office or a branch in the United Kingdom; and

(ii)the AIF is marketed otherwise than pursuant to [F37regulations 57 or 59 of these Regulations].”.

(9) In regulation 33 (management of third country AIFs) after “full-scope UK AIFM” insert “ that has its registered office in the United Kingdom ”.

F38(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) For the table in regulation 50 (marketing by AIFMs of other AIFs) substitute the following table—

(12) In regulation 54 (FCA approval for marketing)—

(a)for paragraph (1) substitute—

“(1) This regulation applies to—

(a)a full-scope UK AIFM seeking to market in the United Kingdom an AIF managed by the AIFM;

(b)a full-scope [F43Gibraltar AIFM] seeking to market in the United Kingdom to retail investors an AIF managed by the AIFM, where the FCA has not received a regulator's notice in relation to the marketing of the AIF in accordance with Schedule 3 to the Act (EEA passport rights).”, and

(b)after paragraph (8) insert—

“(9) The FCA must refuse an application if satisfied that the AIF is a third country AIF or a third-country feeder AIF and the following conditions are not met—

(a)appropriate co-operation arrangements are in place between the FCA (or, in the case of an AIF managed by an AIFM with its registered office [F44in Gibraltar, the Financial Services Commission]) and the supervisory authorities of the relevant third country in order to ensure an efficient exchange of information that allows—

[F45(i)the FCA to carry out its duties in accordance with the Financial Services and Markets Act 2000, these Regulations, and any EU tertiary legislation made under the directive which forms part of EU retained law, and

(ii)the Financial Services Commission to carry out its duties in accordance with the Financial Services (Alternative Investment Fund Managers) Regulations 2013 of Gibraltar;]

(b)the relevant third country is not listed as a Non-Cooperative Country and Territory by the Financial Action Task Force; and

(c)the relevant third country has signed an agreement with the United Kingdom (or, in the case of an AIF managed by an AIFM with is registered office [F46in Gibraltar, with Gibraltar]) and with [F47each EEA State] in which the units or shares of the AIF are intended to be marketed, which fully complies with the standards laid down in Article 26 of the Organisation for Economic Co-operation and Development's Model Tax Convention on Income and on Capital 2010 M13 and ensures an effective exchange of information on tax matters, including any multilateral tax agreements.

(10) In paragraph (9) “relevant third country” means—

(a)in relation to a third country AIF, the country in which the AIF is authorised or registered or, if the relevant AIF is not authorised or registered, the country in which it has its registered office;

(b)in relation to a third country feeder AIF, the country in which the AIF's master AIF is authorised or registered or, if the master AIF is not authorised or registered, the country in which it has its registered office.”.

(13) In regulation 57 (marketing under Article 36 of the directive)—

(a)in paragraph (3) for “must give written notification to the FCA before marketing” substitute “ may give written notification to the FCA that it intends to market ”, and

(b)at the beginning of paragraph (5) for “The AIFM” substitute “ An AIFM that has given a notification under paragraph (3) ”.

(14) In regulation 58 (marketing of AIFs managed by small third country AIFMs)—

(a)in paragraph (1) for “must give written notification to the FCA before marketing” substitute “ may give written notification to the FCA that it intends to market ”, and

(b)at the beginning of paragraph (3) for “The AIFM” substitute “ An AIFM that has given a notification under paragraph (1) ”.

(15) In regulation 59 (marketing under Article 42 of the directive)—

(a)in paragraph (1) for “must give written notification to the FCA before marketing” substitute “ may give written notification to the FCA that it intends to market ”, and

(b)after [F48paragraph (4A)] insert—

“(5) Paragraph (6) applies where a full-scope UK AIFM that has its registered office in a third country markets an AIF only—

(a)pursuant to a notification under this regulation F49...

F49(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The AIFM need not comply with implementing provisions in respect of the AIF other than as required by this Part.”.